New Petition: Repeal ZTA 19-07 and ZTA 22-01. Effects are harmful to residents and neighborhoods

October 25, 2022. A sad day. Thrive 2050 and ZTA 22-01 were both passed by the Montgomery County Council. This is not over! We will not stand by and allow cell towers 30 feet from our homes! We won’t stand for gentrification and displacement!

“Shame on all of you — we hold you accountable,” yelled a woman in the audience after the vote for ZTA 22-01.

We are stronger together and we will be heard!! @MoCoCouncilMD get use to using that gavel. — EPICofMoCo (@EPICofMoCo) October 25, 2022

Two important actions you can take:

  1. Sign the new petition to repeal ZTA19-07 and ZTA 22-01 (link below), and
  2. Vote by Nov. 8: View our updated 2022 General Election Voter Guide (link below).

SIGN THE PETITION TO RESTORE
RESIDENTS’ INTERESTS!
actionnetwork.org/petitions/moco-cell-towers

The Montgomery County Council has passed new zoning that allows cell towers 30 feet from houses and apartments and removes residents previous rights to notice and hearings — eliminating the community from the decision making process.

Use this link to “ADD YOUR NAME” to sign our petition!

Dear Incoming County Council and the County Executive,

We urge you to:

1. Take action to immediately repeal ZTA 19-07 and ZTA 22-01, which allow cell towers 30 feet from homes.

2. Reform wireless zoning and regulation in Montgomery County, with input from residents.

View – Print –  Share!

UPDATED: General Election 2022 – Voter Guide

Don’t want cell towers 30 feet (or less) from your bedroom?
VOTE! BY November 8, 2022

Voter Guide to candidates who support residents’ interests when it comes to cell towers

County Council and County Executive general election, Montgomery County, MD

Thank you to everyone who came out to support our Rally opposing ZTA 22-01

We’re still in this! Also, BIG Thanks to Fox5DC and @thesierrafox for helping to uplift our voices, raising more awareness.

The rally was held Tuesday October 11th
On the steps of the County Council Building
100 Maryland Ave, Rockville, MD

Share the news coverage with friends! Post on social media!
https://www.fox5dc.com/news/residents-protest-cell-towers-in-montgomery-county

Re-tweet

 

!

Second news report.

https://youtu.be/f4N1ZMN3ecE

Rally Highlight: Marion Edey, long-time Environmental Activist and once Founder of the National League of Conservation Voters (LCV), discusses the known impacts of cell towers on the environment.

Rally Highlight: Rick Meyer, President MC4T.org

Listen to what MoCo Residents want from the Montgomery County Council regarding cell antennas 30 feet from homes!

 

https://youtu.be/AzFAlBAwhEc

Rally Highlight: Rick Meyer, President MC4T.org

Listen to how #MoCo Residents have been repeatedly ignored by #MoCoCouncilMD over cell antennas 30 feet from homes at our rally against ZTA 22-01.

 

FCC’s recent big loss in court proves what residents warned all along: Montgomery County Council can’t trust the FCC’s safety standards from 1996 for wireless radiation to protect our families.

fcc vid

Technology has changed a lot since 1996 when cell towers were away from homes & people. FCC's recent big loss in court proves what residents warned all along: Montgomery County Council can’t trust the FCC's safety standards from 1996 for wireless radiation to protect our families.

Please share on social media.

PlayPlay

Councilmember Riemer Ignores County Executive’s Recommendation
to Table ZTA 22-01

Key Points From County Executive Marc Elrich’s Letter:

  1. NO federal obligation to pass this ZTA
  2. NO need
  3. Prudent to wait for FCC reply to Appeals Court ruling on “arbitrary and capricious” RF rules
  4. Won’t help address digital divide.

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Montgomery County digital equity efforts include:

  • 12,294 County households have enrolled in the Affordable Connectivity Program (ACP) – as of JUNE 2022
  • Residents enrolled in other benefit programs are eligible to receive $45 off their home or mobile broadband bill through ACP.
  • Montgomery Connects, the County’s digital equity program, launched an initiative to provide in-person ACP enrollment assistance and has helped more than 428 families enroll in this program. –– JULY 2022
  • 200 families are receiving free home broadband through the MoCoNet 100 Mbps residential broadband program.
  • Senior Planet Montgomery provided technology training for more than 5,000 participants aged 50 and above. –– FY22
  • Montgomery Connects has provided more than 26,000 loaner computers to low-income residents who do not have computers.
  • The Office of Broadband programs is working with Comcast and Verizon to submit Maryland rural broadband grants to get broadband service to the remaining 75 occupied unserved rural properties in the County.

Racial Equity Social Justice Impact Statement Based Largely on Industry-Funded Report

The Council’s own staff, in its Racial Equity and Social Justice impact statement on ZTA 22-01, did not find that 22-01 would have a positive net impact on racial equity or social justice in the County. And that was after relying on a “report” that was “generously” supported by T-Mobile. At the same time, they noted that “if the reduced set back requirements for small cell towers authorized under ZTA 22-01 results in negative health outcomes, this in turn could widen health disparities by race and ethnicity.” The statement did not even consider the social justice impacts of close proximity towers on vulnerable populations. Read residents’ RESJ analysis and the staff’s reply below.

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MoCo Residents have had enough of the false claims by the Telecom industry and their lobbyists AND by Councilmember Hans Riemer

Council’s narratives about residential wireless zoning requirements cannot be squared with what the FCC guidance actually states.

THERE IS NO FCC REQUIREMENT!

The following is an excerpt of a report by Montgomery County Clear Vistas. Read the entire document here.

Background Information: Zoning Text Amendments relating to “small” wireless facilities

  • On July 27, 2021, the Council approved Zoning Text Amendment (ZTA) 19-07, which enables deployment of telecommunications towers in County rights-of-way in residential and agricultural zones. These zones include most single-family homes and many (if not most) multifamily dwellings in the County.
  • On May 15, 2018, the Council approved ZTA 18-02, which allowed similar deployments in commercial and mixed commercial/residential zones, with the placement of towers just 10 feet from existing buildings (including homes and schools).
  • Montgomery County was not required to adopt these ZTAs in order to comply with federal law:
    • Montgomery County is not and was not vulnerable to liability for “a lot of money” if it failed to adopt these ZTAs, as some have claimed. The Supreme Court ruled in 2005 that localities cannot be fined or liable for money damages for failing to deploy a cell tower. (4)
    • The below comparison table summarizes key areas in which 19-07 is more permissive, with towers much closer to homes, than FCC guidelines.
  • Both of these ZTAs were passed without input from the Office of the People’s Counsel (OPC), a required step to amend the zoning code. (5) OPC was created to “protect the public interest” in zoning matters. (6) The Council had previously defunded OPC and voted again on May 11, 2022 to withhold funding. (7)

“If you don’t like this then you can go ahead and accept it because the FCC requires it”. DC News Now Video

“…to quote a decision maker in my community who said, and I quote, they were commanded by the FCC to allow cell towers in homes in a residential area and that’s really not true–it’s really not factual” Theodora Scarato, Montgomery County Resident and Executive Director of Environmental Health Trust to the  House Science, Technology and Energy Committee  (09/26)

Recent federal court decisions regarding FCC

  • On August 13, 2021, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Environmental Health Trust et al. (8), as follows:
    • The Federal Communications Commission (FCC) violated federal law (the Administrative Procedures Act, or APA) by failing to provide a “reasoned explanation” for deciding that its wireless radiation exposure limits do not need updating, even though these limits have not been reviewed since 1996.
    • The Food and Drug Administration (FDA) has not provided an “articulation of the factual… bases” for its conclusions, which “represent[s] a failure by the FDA”, and therefore the FCC cannot rely upon FDA webpage FAQs on cell phone safety.
    • All other expert agencies in the federal government have been silent on the question of safety, and “silence does not even indicate whether the expert agencies… considered any of the evidence”.
    • The Court ordered FCC to “provide a reasoned explanation for its decision” and to address the impacts of RF radiation on children and the environment. FCC has not yet complied with this order.
  • Additional background regarding the EH Trust decision:
    • Petitioners submitted over 11,000 pages of scientific evidence indicating health effects of wireless radiation exposure at levels below FCC’s current limits.
    • FCC is required to set exposure limits to protect public health, but it is not a health agency and relies on other expert agencies’ analyses (which have not been done).
    • FDA acknowledges that it has not made any determination about the safety of cell towers. (9,10)
  • Title 47 Section 332 of the US Code (11) says local governments may not “regulate the placement” of cell towers based on environmental effects of radiofrequency emissions, which is based on the premise that the FCC complies with environmental protection law before it seeks to preempt local zoning authority.

    • However, in 2019 the U.S. Court of Appeals for the D.C. Circuit in the Keetoowah case found that FCC violated federal law (the APA) by failing to justify its assertion that “small cell” wireless facilities “pose little to no environmental risk”. (12) The court held that the FCC acted in an arbitrary and capricious manner and that FCC’s “public interest analysis did not meet the standard of reasoned decisionmaking.” Although almost three years have passed since that decision, we are not aware of FCC having provided any analysis of the environmental effects of small cell networks or of their cumulative effects.
    • Wireless carriers have asserted that “environmental effects” includes “health effects”, however this has not been tested in court. Courts have issued decisions based on “potential” health effects or “concerns” about health effects, but not on imminent or actual effects. (13) There is an open legal question about this assertion. (14)

Wireless facilities’ regulatory compliance in the County

  • The County has been approving wireless transmission facilities on rooftops of multifamily residential buildings since at least 1996, as far back as its public database is available. Many of these multifamily homes provide relatively affordable housing in our high-priced County.
  • Residents have brought to the attention of the County’s Transmission Facilities Coordination Group (also known as the Tower Committee) errors in many applications for wireless facilities. For example, in 2020, residents pointed out to the Committee an apparent pattern of errors relating to the underreporting of expected levels of exposure to wireless radiation. This pattern affected at least 25 sites, including nine residential buildings and two County high schools. (15) All had been favorably recommended by the Committee before the errors were discovered, requiring the Committee to seek corrections and re-consideration.

  • Applicants’ own estimates often predict that their antennae on top of residential buildings will generate levels of exposure to wireless radiation in certain areas atop the building and/or over the sides that will exceed federal exposure limits for the general public, sometimes by dozens of times. (16) In one example, the maximum anticipated level of exposure in one area on the rooftop was predicted to be as high as 114 times FCC limits. (17)

  • The Tower Committee does not include any resident representatives, nor are residents permitted to speak at its meetings.

  • The County currently has no policy or procedure to ensure that, after installation, wireless facilities – whether in rights-of-way, on school property, on private property, or on buildings – comply with County requirements and do not exceed FCC exposure limits, even when applications anticipate exceeding those limits.

Comparison between FCC guidelines and recent zoning changes adopted by the Council For Residential and Agricultural Zones summarizing key areas in which 19-07 is more permissive, with towers much closer to homes, than FCC guidelines.

Topic Description FCC guideline ZTA 19-07

< 30 feet from homes (18)

ZTA 19-07

≥ 30 feet from homes(19)

Setbacks Minimum distance from a dwelling (previously 300 feet)
  • No requirement or specific guidance
  • Allowed

  • Allowed

Shot clock

Number of days to process an application to install a small cell tower

  • 90 days, or longer if needed (20)

  • 90 days

  • 90 days

Notice

Whether notice of an application is sent to nearby residents

  • Allowed

  • Sent to property owners within 300 feet

  • Eliminated

Hearing process

Administrative hearing to consider applications and hearing examiner autonomy

  • Permitted at any distance

  • Eliminated hearing examiner ability to reject an application

  • Eliminated

Appeals

Ability for residents to appeal a hearing decision

  • Allowed

  • Eliminated

  • Eliminated

Measurement

Ensuring compliance with FCC radiofrequency exposure limits

  • Allowed

  • None

  • None

Fees

Amount County may charge the applicant for use of the County right-of-way (21)

  • Can recover all costs

  • $2600

  • $690

Aesthetics

Ability of Counties to specify the visual look of cell towers

  • Allowed

  • Hearing examiner minimal latitude

  • Same color as pole

Antenna size  Maximum size of a “small cell” antenna, less than 50 feet from the ground
  • 3 cubic feet
  • 6 cubic feet
  • 6 cubic feet
Liability Antenna owner responsible for liability arising from its deployment
  • Allowed
  • No requirement
  • No requirement

Note: Table above summarizes the changes enacted by ZTA 19-07, which amended the zoning code section 59-3.5.2; this summary does not capture all aspects of a complex zoning code, nor does it reflect the applicability of section 59-3.5.14, which is the subject of a proposed ZTA 22-01 (see endnote 3).

References

1 https://www.montgomerycountymd.gov/COUNCIL/Resources/Files/zta/2018/20180515_18-44.pdf

2 https://www.montgomerycountymd.gov/COUNCIL/Resources/Files/zta/2019/20210727_19-17.pdf

3 https://www.montgomerycountymd.gov/council/Resources/Files/agenda/col/2022/20220215/20220215_3C.pdf

4 https://www.supremecourt.gov/opinions/04pdf/03-1601.pdf

5 See Zoning Ordinance, Appendix B, section 2(a) https://codelibrary.amlegal.com/codes/montgomerycounty/latest/montgomeryco_md_zone2014/0-0-0-64694

6 https://codelibrary.amlegal.com/codes/montgomerycounty/latest/montgomeryco_md/0-0-0-1897

7 PHED Committee recommended withholding OPC funding: https://www.montgomerycountymd.gov/council/Resources/Files/agenda/col/2022/20220511/20220511_36.pdf Full Council adopted this recommendation without discussion: https://www.youtube.com/watch?v=hrdi8QFDKK4

Recommendation shown on the summary for that Council meeting: https://www.montgomerycountymd.gov/COUNCIL/Resources/Files/agenda/col/2022/20220511/summary- 20220511.pdf

8 https://www.cadc.uscourts.gov/internet/opinions.nsf/FB976465BF00F8BD85258730004EFDF7/$file/20-1025- 1910111.pdf

9 See letter dated January 11, 2022, from FDA Center for Devices and Radiological Health https://ehtrust.org/wp-content/uploads/FCC_FDA-Communications-FCC-Lawyer-and-Mother-on-Cell-Tower- Radiation-.pdf

10 See public comments by local resident groups regarding Montgomery County’s reliance on FDA statements: https://www.regulations.gov/comment/FDA-2021-P-1347-0732

11 https://www.law.cornell.edu/uscode/text/47/332

12 https://docs.fcc.gov/public/attachments/DOC-359025A1.pdf This paragraph has been updated from an earlier version.

13 Maryland is located in the Fourth Circuit of the federal appeals courts. This court has ruled against using “potential” health effects, or “concerns” about health effects as a basis for rejecting a permit; however that does not preclude placement decisions based upon actual health effects, known harms, or imminent harms. https://www.courtlistener.com/opinion/626095/t-mobile-northeast-llc-v-city-of-newport-news/

14 https://www.supremecourt.gov/DocketPDF/21/21- 629/196710/20211025140205639_Santa%20Fe%20Alliance%20Petition.pdf

15 https://techwisemocomd.org/wp-content/uploads/2021/01/Why-Did-25-Wireless-Applications-with-Errors-Pass- MoCo-Tower-Committee-Review-Red3.pdf

16 See County tower database for examples: https://montgomerycountymd.gov/cable/Towers/database_towers.html

17 See page 124 https://montgomerycountytfcg.s3.amazonaws.com/Applications/MC2020031117+Application.pdf

18 “Conditional use” refers to permits that require public notice and a zoning hearing. ZTA 19-07 changed this setback from 300 feet to less than 30 feet.

19 “Limited use” refers to permits that may be issued without notice and without a zoning hearing. ZTA 19-07 reduced this setback from 300 feet to 30 feet or greater from any building intended for human occupation.

20 See page 54 https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/12/18-72689.pdf

21 Localities may charge fees to recover their costs. FCC established a “safe harbor”, meaning any fees at or below this amount are automatically presumed lawful without having to estimate costs. Prior to 19-07, the fee was $16,390 per application (see pdf page 7) https://apps.montgomerycountymd.gov/ccllims/DownloadFilePage?FileName=8356_1_5209_Resolution_18- 601_Adopted_20160913.pdf

There is no FCC requirement, no plausible legal justification.
It appears the purpose is yet another gratuitous handout to the wireless industry.

Mark your calendar! Oct 11 (New date) Rally to Stop Cell Towers 30 Feet From Homes Meet at 11:30 am, Tuesday, Oct. 11th

Mark your calendar! Oct. 11th (new date) Rally to Stop Cell Towers 30 Feet From Homes

***RALLY RESCHEDULED DUE TO WEATHER***

Check back on this webpage (https://actionnetwork.org/letters/stop-zta-22-01) for updates to our Rally plans to stop the proposed ZTA 22-01!

Meet at 11:30 am, Tuesday, Oct. 11th

Steps of the Montgomery County Council building

100 Maryland Ave., Rockville, MD 20850 (see directions)

Please share this event information with your email lists. Suggested subject line: Subject: Urgent Action and Invite! Please attend the Oct 11th Rally to Stop Cell Towers 30 Feet From Homes

Don’t want a cell tower 30 feet from your bedroom window?
(Email Council Now with our Action Network Tool – Takes only a minute!)

The Montgomery County Council is scheduled to vote in October on ZTA 22-01, which will allow utility poles to be transformed into cell towers just 30 feet from homes!

30 FEET!

You will get NO public notice, no public hearing, and no right to appeal, as long as the pole is at least 30 feet away in any residential neighborhood, which includes houses and apartments.

The MoCo Council PHED Committee meets on Monday October 10 – tell them NOT to recommend 22-01 to the full Council! “Click on “Start Writing” on the right-hand side of this page.

Thank you to the over 1,000 residents who wrote letters to the County Council and County Executive opposing 22-01. After receiving your letters, the Council increased the number of slots for residents at the September 13 public hearing from only 6 up to 15 slots.

42 residents signed up to testify against 22-01 (thank you again!), however the Council left 27 of them stranded on the waitlist, barred from speaking. The Council declined to move the hearing to a full nighttime hearing to allow all residents on the waitlist to speak. Watch the video testimony here. Every single resident who signed up to testify or submitted testimony opposed this ZTA. It was unanimous. The only people who testified in favor were 2 lobbyists and the chairman of the County Planning Board, an employee selected by the County Council.

ACTION you can take right now: Click START WRITING on the right-hand side of this page do use our 1-minute tool to tell the Council to:

1) Remove 22-01 from the PHED Committee agenda on October 10 and cancel all action on ZTA 22-01 this term.

2) Meet with members of our coalition who have requested meetings with multiple Council members regarding ZTA 22-01.

A number of Councilmembers have declined to speak with constituents and members of our coalition regarding 22-01. We hope Councilmembers will recall that they are elected to represent their constituents, not to rubber-stamp bills for lobbyists.We are cc:ing these emails to all candidates for County Council and County Executive in the upcoming November election. We encourage all candidates to urge the outgoing, lame-duck Council not to take any further action on this issue and allow the incoming Council to consider changes to the zoning code and wireless regulations.

It’s time to show the Council that we cannot be ignored: Let’s rally together against the bad idea of cell towers just 30 feet from bedroom windows. Bring signs and stand with us, on the steps of the County Council, 11:30 AM on Tuesday, October 11th!

Background on ZTA 22-01

Last year, the County Council adopted ZTA 19-07, a zoning law pushed through for the wireless industry after six years of residents’ intense objections. Despite finally passing this ZTA, the lead sponsor of 19-07 and 22-01 is claiming that the language of last year’s bill was “not exactly as intended” and needs further correction. He wants to pass yet another ZTA to make it even easier for the wireless industry to install thousands of antennas just 30 feet from homes, on existing utility or light poles.

30 feet is not the magic number!

There is no FCC requirement, no plausible legal justification, for the 30-foot cell antenna setback of ZTA 22-01 and council’s narratives about residential wireless zoning requirements cannot be squared with what the FCC stated to the Supreme Court in response to City of Portland et al. v. the FCC in June 2021. It is yet another gratuitous handout to the wireless industry.

ZTA 22-01 and 19-07 do not provide for any prior notice to residents, or any right of hearing or appeal, for cell towers 30 or more feet from homes. Utility poles contemplated under 22-01 have NO HEIGHT LIMIT.

The Council’s own staff, in its Racial Equity and Social Justice impact statement on ZTA 22-01, did not find that 22-01 would have a positive net impact on racial equity or social justice in the County. And that was after relying on a “report” that was “generously” supported by T-Mobile. At the same time, Council staff noted that “if the reduced set back requirements for small cell towers authorized under ZTA 22-01 results in negative health outcomes, this in turn could widen health disparities by race and ethnicity.” The statement did not even consider the social justice impacts of close proximity towers on vulnerable populations. Read residents’ RESJ analysis and the staff’s reply.

Want To Do More?

Promote the rally! Share this event information with your email lists and share online! Facebook/Twitter @MoCoCoalition

Submit written testimony! Send personal emails to the council, call their offices, leave voicemails, tweet at them publicly, and request one-on-one meetings.

SHARE this link! Tell your friends, post on social media! https://actionnetwork.org/letters/stop-zta-22-01

When: Tuesday October 11th 11:30 to 1:30pm
Where: Steps of the County Council Building
100 Maryland Ave, Rockville, MD
Hope to see you there!
Facebook/Twitter @MoCoCoalition

MD5G Partnership Deleted Tweet After Resident Pointed Out the False Claims

The Tweet shown in this screen capture was deleted after a Montgomery County resident pointed out the false claim.

 

Their next tweet wasn’t any better.

Your bogus @amcancersociety “quote” was hastily taken down. And, this new messaging angle FAILS to mention that DC Circuit ruled current RF standards are “arbitrary and capricious.” @MoCoCouncilMD So, maybe try again @MD5GPartnership?? @Steve_Bohnel

 

https://youtu.be/BFekznCUwwY?t=4072

“…[I obviously, I did not support 19-07 you know, along with Councilmember Katz and I didn’t support it because of the pending litigation] … [asked the FCC to update those regulations regarding health] …[and if we get that information we’ll need to – if it changes anything we need to take action]…”

false claims
See Also:
False claims by Cell Tower ZTA Sponsor
Councilmember Hans Riemer.
In a news report Hans Riemer said, "Go ahead and accept it because the FCC requires it".